In death penalty states, executing the innocent is just a price they pay to keep the machinery of death running. Nothing is perfect, after all, and so long as the error rate in capital cases isn’t “too great,” we look away or pretend that those who are killed got what they deserved.
We tolerate executing the innocent to put an end to long, drawn out capital cases. Doing so may provide finality and some semblance of closure to families of murder victims.
We execute the innocent because the Supreme Court tells us that nothing in our Constitution forbids it.
It is long past time to acknowledge that as long as we continue to sentence people to death, we will keep executing innocent people.
Texas did so when it executed Cantu by lethal injection for murdering his cousin and his cousin’s fiancée, James Mosqueda and Amy Kitchen, in November 2000. As the Texas Tribune notes, “Prosecutors pointed to bloody clothing found in Cantu’s trash can, stolen jewelry and the testimony from Cantu’s fiancée, Amy Boettcher, and her brother, Jeff Boettcher, to build a case against the defendant.”
However, between the time he was convicted and today, the case against Cantu gradually unraveled.
First, four years ago a police officer signed a sworn affidavit contradicting what Amy Boettcher said about finding bloody jeans at Cantu’s home. As the Tribune reports, “The jeans were too big for Cantu and tests did not find conclusive evidence of his DNA on the pants.”
Amy Boettcher also testified that Cantu threw a Rolex watch belonging to Mosqueda out of a car window shortly after the murders. But, in 2019, Cantu’s lawyers learned that the police found the watch in Mosqueda’s home and had returned it to his family.
As detailed in Cantu’s last-minute request for a stay of execution from the U.S. Court of Appeals for the Fifth Circuit, Boettcher also lied when she testified that Cantu proposed to her with Amy Kitchen’s engagement ring on the night of the murders.
Boettcher gave other false testimony, claiming that Cantu had committed the murders around midnight on November 3. Declarations from two forensic pathologists suggest that the killings occurred on the morning of Saturday, November 4, “based on the onset and progression of rigor mortis and livor mortis.”
More unraveling of the case against Cantu occurred in 2021 when Jeff Boettcher admitted that he lied when he testified that Cantu recruited him to clean up after the murders and that he was a drug user when he gave that false testimony.
And, as too often happens in death cases, the state knew about the problems with the Boettchers in advance of Cantu’s trial but went ahead anyway.
When all of this came to light, three of the jurors who had voted to convict Cantu and sentenced him to death came forward and said that they would not have done so if they had known about those problems at the time of the trial.
One of them said, “By no means am I protesting the death penalty, by no means am I protesting our judicial system. I’m simply asking that this be looked at a little deeper before the unripened fruit is taken off the tree.”
Even with Cantu’s new evidence and the support of some of the very people who sentenced him to death, on February 27, the ultra-conservative and death penalty friendly Fifth Circuit gave the green light for his execution. The court chastised Cantu, saying that “his claims could have been discovered years or even decades ago with the exercise of due diligence. And even if some of his claims had merit (though they do not), he has not made a prima facie case that by clear and convincing evidence, no reasonable factfinder would have found him guilty of the two murders.”
But nothing that the court said can obscure the fact that Americans have recently learned a lot about the kinds of problems that plagued Cantu’s and other death penalty cases.
A 2003 Gallup poll asked, “How often do you think that a person has been executed under the death penalty who was, in fact, innocent of the crime he or she was charged with—do you think this has happened in the past 5 years, or not?” 74% of the respondents reported that they believed that an innocent person had been executed within the last 5 years.
In a 2021 Pew survey, 78% of the respondents agreed that “there is some risk that an innocent person will be put to death, while only 21% think there are adequate safeguards in place to prevent that from happening.”
And over the last fifty years, 197 people have been exonerated and released from death row. Twenty-one of those exonerations resulted from DNA testing.
As the Death Penalty Information Center reports, between 1976 and 2021 for every 8.3 people sentenced to death in the United States 1 was exonerated.
In 2014, Law professor Samuel Gross and his colleagues published a study in which they tried to identify the number of death sentenced individuals who are actually innocent. As they explained, “False convictions, by definition, are unobserved when they occur: If we know that a defendant is innocent, he is not convicted in the first place. They are also extremely difficult to detect after the fact. As a result, the great majority of innocent defendants remain undetected.”
Gross also reminds us that the rate of exonerations among death sentences in the United States is “far higher than for any other category of criminal convictions. Death sentences represent less than one-tenth of 1% of prison sentences in the United States, but they accounted for about 12% of known exonerations of innocent defendants from 1989 through early 2012, a disproportion of more than 130 to 1.”
They estimate that “if all death-sentenced defendants remained under sentence of death indefinitely, at least 4.1% would be exonerated.”
Today, there are more than 2,300 people on death rows across the United States. Applying Gross’s figure suggests that 94 of them are innocent.
Texas alone has more than 190 people awaiting execution. For Gross and his colleagues that means that 7 or 8 of them shouldn’t be there at all.
In fact, Texas has the dubious distinction of leading the way when it comes to executing the innocent. The Death Penalty Information Center lists 20 cases (not including Ivan Cantu’s) where there is what it calls “strong evidence of innocence.”
Of those 20 cases, 10 come from Texas alone. On Wednesday when it put Ivan Cantu to death, Texas added to that grim total.
Writing just over a century ago in 1923, the famous judge Learned Hand said, “Our [criminal] procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream.” It is time for this country to awaken from that dream.
We must face the fact that we will continue to execute the innocent as long as we continue to execute anyone. That is reason enough to stop executing at all.
Source: verdict.justia.com, Austin Sarat, March 5, 2024
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